Legal advice: Working arrangements for parents

Related tags Employment

Are you aware that staff can request more flexible working arrangements to care for a child?By Martin Donoghue of thePublican.com's team of legal...

Are you aware that staff can request more flexible working arrangements to care for a child?

By Martin Donoghue of thePublican.com's team of legal experts from London solicitors Joelson Wilson.

We have recently received an interesting question from an employer in the licensed trade. She runs a small business with a handful of employees, one of whom is currently on maternity leave. The employee has said that she wants to come back to work, but only on a part-time basis. The employee does not want to work during the busiest periods within the business.

The employer is concerned as she is not sure that she can agree to the request. Not only will it leave her short-staffed at the busiest times, but she is also concerned that other staff will feel resentment if she agrees to the request. She thinks she is caught between a rock and a hard place, and does not know what to do.

There are two big legal issues here. The first concerns the right of certain employees with young children to request flexible working arrangements. The right to make this request came into force in April of 2003. The request can be for a change to:

  • the number of hours worked
  • the times hours are worked
  • working from home.

Although an employee does not have the right to insist on flexible working, there are set procedures that must be followed, and the employer must give proper and genuine thought to a request to work flexibly. If the employer wishes to refuse a request, they must do so only on specified business grounds, such as:

  • cost
  • impact on customer service
  • inability to re-organise to meet the request
  • inability to recruit extra staff.

The second issue concerns a potential claim for indirect sex discrimination if an employer refuses a request for flexible working without justification.

The law relating to indirect discrimination is complicated, and is based on the fact that as more women have child caring responsibilities than men, it is generally harder for women than men to comply with certain employment terms, such as those requiring specified hours to be worked. Provided a woman can show certain matters, she will be protected unless the employer can show that the contractual employment term was justified.

Accordingly, an employer who insists on certain working hours can face a claim for compensation (which has no upper limit on the amount that can be awarded) if it cannot justify those hours on specified grounds.

Of course much will depend on the specific circumstances of each case, but both employers and employees can be assured that the applicable law does try to take account of both points of view and to reach the right balance between two potentially conflicting positions.

Related topics Licensing law

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